IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20090000234 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

	a.  item 26 (Separation Code) of "JFM" and item 27 (Reentry (RE)) Code of "RE-3" to more favorable codes; and

	b.  item 28 (Narrative Reason for Separation) from "Disability-Existed Prior to Service" to "Disability-Did Not Exist Prior to Service."

2.  The applicant states that all the information from Dr. W******n at Fort Benning, GA was not truthful but it was still allowed during the physical evaluation board (PEB).  He adds that he and his wife previously submitted written statements explaining the whole process clearly.

3.  The applicant did not provide any additional documentary evidence in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s narrative reason for separation be changed to a medical separation.

2.  Counsel states that the applicant’s medical evaluation at Fort Benning, GA is incomplete and contains conflicting information among the physicians.  The staff failed to properly process the medical evaluation board (MEB) and PEB paperwork allowing the applicant to remain at his assignment more than seven months carrying out his duty with no medical incident before erroneously separating him.  Additionally, the medical records revealed no similar incident after more than four years that included basic training and continuous rigorous training at an infantry military facility.  

3.  Counsel did not provide any additional documentary evidence in support of the applicant’s request. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Tennessee Army National Guard (TNARNG) on 20 December 2000.  He subsequently entered active duty for training (ADT) on 15 October 2001, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  He was honorably released from ADT to the control of his ARNG unit on 22 April 2002.  He was assigned to the 1171st Transportation Company, Millington, TN.  

3.  The applicant’s records also show he was honorably discharged from the TNARNG on 21 May 2002 for the purpose of enlistment in any component of the armed forces and he enlisted in the Regular Army for a period of 3 years on 
22 May 2002.  He was assigned to the 63rd Engineer Company.  He also executed a 2-month extension in the Regular Army on 31 July 2002.  

4.  In or around March 2003, the applicant suffered a seizure and was subsequently hospitalized at the Medical College of Georgia, Augusta, GA.  He was diagnosed as having what appeared to be symptomatically related epilepsy and was prescribed medication.  

5.  On 9 June 2003, an MEB convened at Martin Army Community Hospital, Fort Benning, GA, and determined that the applicant was medically unfit for duty due to epilepsy secondary to multiple intraparenchymal cavernous angiomas and right superficial radial neuropathy.  The MEB recommended referral to a PEB.  The applicant indicated he desired to continue on active duty and did not agree with the MEB’s findings and recommendations.  

6.  On 20 June 2003, the applicant’s immediate commander submitted an evaluation of the applicant’s performance.  He indicated that the applicant had been diagnosed with epilepsy seizures and that due to this condition he was no longer able to perform his duties as a transportation driver.  The commander also indicated that the applicant had performed field duty as an administrative clerk and that his participation in physical training was within the level of his physical profile.   A copy of the applicant’s physical profile is not available for review with this case.

7.  On 23 June 2003, the applicant appealed the findings and recommendations of the MEB.  However, a copy of the applicant’s appeal is not available for review with this case.  Furthermore, on 27 June 2003, after considering his appeal, the approval authority confirmed the original findings and recommendations.

8.  On 9 July 2003, an informal PEB convened at Fort Sam Houston, TX, and after a review of the objective medical evidence of record, the PEB found the applicant's medical and physical impairments prevented reasonable performance of the duties required by his grade and military specialty and determined that he was physically unfit due to epilepsy, secondary to multiple intraparenchymal cerebral cavernous hemangiomas.  Additionally, the PEB noted that this condition was not incurred or aggravated while he was entitled to basic pay and was not in line of duty.  There was compelling evidence to support a finding that his current condition existed prior to service (EPTS) and was not permanently aggravated by service.  His seizures were the result of multiple congenital vascular lesions and that military service had no role in his seizure development. The applicant was classified under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8910 but was not given a rating.  The PEB also considered his second condition of right superficial radial neuropathy but determined that it was not unfitting and thus not rated.  The PEB recommended the applicant be separated from the service without disability benefits.  The applicant did not concur with the PEB’s findings and recommendation.  He waived a formal hearing of his case; however, he did not make an election regarding submission of a written appeal. 


9.  On 21 August 2003, the PEB president approved the findings and recommendations of the PEB.

10.  On 26 January 2004, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, published Orders Number 26-2204 directing the applicant’s discharge effective 11 February 2004.  However, his orders were later amended to show a discharge date effective 19 March 2004.

11.  On 19 March 2004, the applicant was honorably discharged.  The DD Form 214 he was issued shows he completed a total of 2 years, 4 months, and           19 days of creditable active military service. (However, it also erroneously shows he entered active duty during that period on 14 November 2001.)  Item 25 (Separation Authority) shows the entry “AR 635-40, paragraph 4-24B(4),” item 26 shows the entry “JFM,” item 27  shows the entry “3,” and item 28 shows the entry “Disability-Existed Prior to Service, PEB.” 

12.  On 5 November 2004, the applicant petitioned the Army Discharge Review Board (ADRB) to change his honorable discharge to an entry level or uncharacterized discharge.  

13.  On 1 July 2005, by letter, the ADRB notified the applicant that after a careful examination of his application, military records, and all available evidence, the ADRB determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason for discharge was denied.

14.  On 23 March 2008, the applicant submitted a second petition to the ADRB for a review of his discharge and RE code. 

15.  On 14 October 2008, by letter, the ADRB again notified the applicant that he was properly and equitably discharged and that his request for a change in the character and/or reason for his discharge was denied. 

16.  The applicant had previously submitted a self-authored statement and a statement from his spouse in support of his request to the ADRB, as follows:

	a.  in his statement, dated 4 October 2008, the applicant provides an overview of his background and how he joined the military.  He then goes on to state that he remembers that after taking the required immunizations one day in March 2003 for an upcoming deployment, he went home that day, took a nap, and woke up in the hospital.  Upon his release, he visited a neurologist and underwent several tests, none of which could determine anything that would have kept him from continuing his military service.  However, the neurologist informed him then that he was recommending his discharge from the Army.  He then filed an appeal to change his MOS and contacted his Member of Congress who assisted him by requesting the Army grant him a stay until all matters were resolved.  By the time the letter came, his appeal had been denied and separation was imminent.  This mishandling of documentation led to a very limited time to out-process the installation and a sudden financial hardship.  He further adds that subsequent to his discharge, he enrolled in college and continued to encounter personal, medical, and financial difficulties.  He concludes that he is currently undergoing mental health evaluation and/or treatment for depression at the Department of Veterans Affairs; and 

	b.  in her statement, dated 4 October 2008, the applicant's spouse restates the events that took place regarding the applicant's separation.  She provides a background of her marriage, children, and her husband's decision to join the military.  She further restates the same events described by the applicant and corroborates his contention. 

17.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of AR 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

18.  Chapter 4 of AR 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which existed prior to service or occurred in line of duty and not due to the Soldier’s misconduct.  Paragraph       4-24B(4) provides for separation for physical disability without severance pay.  

19.  AR 635-200 (Active Duty Enlisted Administrative Separations) states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing 

into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An RE–1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

20.  AR 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of the separation codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  The "JFM" SPD code is the correct code for Soldiers separating under paragraph 4-24B of AR 635-40 (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his medical condition did not exist prior to service and the correct RE and separation codes.

2.  The evidence of record shows the applicant suffered from a medical condition -epilepsy secondary to multiple congenital vascular lesions - that rendered him unable to satisfactorily perform the duties of his grade and specialty.  Consequently, his records were evaluated by an MEB that referred him to a PEB. The PEB found him medically unfit and found compelling evidence to support a finding that he had an EPTS condition and the conditon was not aggravated by military service.  Accordingly, the PEB recommended separation by reason of physical disability without entitlement to severance pay. 

3.  The evidence of record confirms the applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 4-24B(4) due to his EPTS condition of epilepsy.  Absent the medical condition, there was no fundamental reason to convene an MEB and/or a PEB.  The underlying reason for his MEB/PEB was his EPTS condition. The only valid narrative reason for separation permitted under that paragraph is "Disability-Existed Prior to Service.”  Therefore, the applicant received the proper narrative reason for separation.

4.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of paragraph       4-24B(4) of AR 635-40.  The RE code associated with this type of discharge is an "RE-3" and the Separation Code associated with this type of discharge is "JFM."  Therefore, the applicant received the appropriate RE and Separation codes associated with his discharge.

5.  Counsel indicated that the applicant’s narrative reason of the separation should be changed to a medical discharge.  It is noted that the applicant’s narrative reason for separation is “disability” which is a medical discharge.  Furthermore, contrary to counsel’s argument that the staff at Fort Benning, GA, failed to properly process the MEB and PEB paperwork and allowed the applicant to remain at his assignment seven months carrying out his duty and continuous rigorous training at Fort Benning, the evidence of record shows the applicant’s immediate commander utilized the applicant in an administrative capacity and allowed him to undergo physical training within the limits of his profile.  Additionally, the fact that the applicant did not have any medical incident subsequent to the PEB does not negate the fact that he was found medically unfit due to his preexisting medical condition.  All requirements of law and regulation were met.  

6.  The applicant’s financial, personal, and family difficulties were considered.  Additionally, his patriotism and love of the Army as well as his family’s sacrifices during the separation process are also considered.  However, in order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not provide any evidence or sufficiently mitigating argument to warrant a change in the narrative reason for separation, RE code, or separation code.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090000234



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ABCMR Record of Proceedings (cont)                                         AR20090000234



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